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Criminal Miscellaneous Application No.103 of 1986, decided on 3rd March, 1986.

---S.491--Detention--Detenus adult ladies and sui juris and able to decide about their future--Such ladies after release, lodged in Darul Aman against their wishes--Relatives of such ladies present in Court neither applied for being impleaded as a party nor claimed custody of detenus--Order of Magistrate putting detenus it Daru: Aman set aside and detenus allowed to go wherever they liked.

Muhammad Rafique v. Muhammad Ghafoor P L D 1972 S C 6; Aziman v. Additional City Magistrate, North Nazimabad, Karachi and another 1979 P Cr. L J 733 and Mst. Zohra alias Munawar v. The State 1983 P Cr. L J 1284 rel.

---S.491--Detention--When detention is proved illegal and improper, detenu is then to be set at liberty.

Syed Madad Ali Shah for Petitioner.

S. Sarfraz Ahmad, A.A.-G. for the State.

--This is an application under section 491, Cr.P. C. filed by Nabi Bux applicant who is not related to the alleged detenus namely Mst. Pasham and Mst. Reshman. According to the applicant he ha:.: adopted the a who young ladies as his sisters. Grievance of the applicant is that both these young ladies are detained illegally in Darul Aman under the orders of the Resident Magistrate, Dadu. We issued Rule Nisi for the production of alleged detenus, who are present in the Court. We have recorded their statements. Both these detenus appear to be grown up young ladies and Mst. Pasham is 22 years old and Mst. Reshman is 20 years old as claimed by them. We also feel that they are as old as claimed by them on their physical appearance. Mst. Pasham has a female child in her lap about four years old. According to her story, she was married with Mu'khtiar Khaskheli, who is present in the Court. She has further stated that Mukhtiar Khaskheli is father of her child but he deserted her and does not maintain her and also maltreats her. Since a long time she has not been living with him nor he is maintaining her. Another person present in the Court is Dildar Ali who claims to be brother to both these detenus. Haji Hamz Ali, maternal uncle of these girls, is also present in the Court. Mst. Reshman is not married.

Order passed by the Resident Magistrate, Dadu, dated 9-2-1986 shows that statements of both these girls were recorded under section 164, Cr.P.C. in which both of them expressed their desire to go with the petitioner but this was not allowed for the reason that petitioner was not related to these young ladies and in the circumstances it was found to be fit and proper to send them to Darul Aman. This order was passed on 9th February, 1986 and today they are produced in this Court in execution of Rule Nisi on 3rd March, 1986 after a lapse of more than three weeks. In their statements they have reiterated same stand that they would not like to go back to any of their relatives who are present in the Court but would like to go with the petitioner.

We have given our anxious thought to this aspect of the matter and we are also confronted with the legal position that both these ladies are adults and sui juris and the can decide about their future.

The question which is causing anxiety is that how they can be detained in Darul Aman particularly when they have stated before that they are lodged in Darul Aman against their ,wishes and they would not like to be detained there any longer Sc far the relatives of these detenus who are present in the Court, are concerned, we don't know how they are present in the Court because they have not been impleaded as respondents and notice; have not been issued to them. It is surprising that none of them applied to the Court to be impleaded in this case as a party concerned or has, no body made a claim about their custody by way of being joined as necessary party. If they claim custody of the alleged detenus, law allows them separate remedies which can be persued by them in other forums of competent jurisdiction. So far section 491, Cr.P.C. is concerned, the requirement of the law is that if the detention is proved to be illegal and improper I then the detenue is to be set at liberty. In the instant case, both the detenus have stated in their statements recorded before us that they don't want to stay any longer in Darul Aman.

Learned counsel appearing for the petitioner has cited before us the cases of Muhammad Rafique v. Muhammad Ghafoor P L D 1972 S C 6; Aziman v. Additional City Magistrate, North Nazimabad, Karachi and another 1979 P Cr.L J ,1733 and Mst.. Zohr has Munawar v. The State 1983 P Cr. L J 1284.

For the facts and reasons stated above land keeping in view the legal position enunciated in the reported cases cited before us we quash the impugned order passed by the Resident Magistrate, Dadu dated 9-2-1986 and set at liberty both detenus as under the law they are free to go wherever they like. Rule Nisi is hereby recalled. Let the law take its own course.

M.Y.H./N-40/K Petition accepted.

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